Excerpt:.....to prove their title by prescription, that the land is ancestral qua the plaintiffs and dalip singh deceased, and that sada kaur defendant 1 had become full owner of her share of the land in view of the provisions of the hindu succession act, 1956 the learned trial judge by his judgment and decree of june 13. 1963, thus did not grant declaration to the plaintiffs as praved for by them, but he made a declaration that they along with chand singh defendant 2 are owners and in possession of four-fifths of the land in dispute decree was ordered to be made according to that, leaving the parties to bear their own costs on an appeal by the plaintiffs from the decree of the trial court, the learned additional district judge of ferozepur by his judgment and decree of august 7. 1964, reversed..........common ancestor. the plaintiff averred that the land is ancestral qua them and their brother dalip singh deceased, that they were governed by custom among dhaliwal jats in muktsar tehsil of ferozepur district in regard to inheritance, widow's right to succession, and forfeiture of estate on widow's unchastity or remarriage, and that throughout they have remained in possession of the land as owners and co-sharers. they sought declaration that they were owners of two-thirds of the land, the rest one-third remaining with chand singh defendant 2. this they claimed on the ground that on remarriage sada kaur defendant 1 forfeited her right to the estate of her deceased husband dalip singh.2. the trial court found that the suit of the plaintiffs was within time, that though the parties are.....

Judgment:ORDER

Mehar Singh, C.J.

1. The following pedigree-table of the parties assists In appreciation of the facts of the case-

GULAB SINGH (deceased)

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_____________________________________________________________________

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Dalip Singh Chand Singh Sampurna Singh Bakhtawar Singh Jit Singh

(deceased) Defendant 2. (deceased) Plaintiff 1. Plaintiff 2.

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Widow Sada Daughters

Kaur |

Defendant 1. __________________

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Kartar Kaur Jas Kaur

Defendant 3. Defendant 4.

The land in dispute was inherited by his five sons on the death of Gulab Singh, the common ancestor. The suit, out of which the present second appeal arises, was instituted by the two plaintiffs on January 22, 1962- They averred that some thirty years earlier to that Dalip Singh had died issueless, leaving him surviving his widow Sada Kaur defendant 1, who, within a few months of the death of her husband, remarried, by Karewa. the real brother of her husband, Chand Singh defendant 2. They have had a number of children out of that marriage. On the death of Sampuran Singh, his two daughters (defendants 3 and 4) sold one-fifth share of their father to the remaining four branches of the common ancestor. The plaintiff averred that the land is ancestral qua them and their brother Dalip Singh deceased, that they were governed by custom among Dhaliwal Jats in Muktsar Tehsil of Ferozepur District in regard to inheritance, widow's right to succession, and forfeiture of estate on widow's unchastity or remarriage, and that throughout they have remained in possession of the land as owners and co-sharers. They sought declaration that they were owners of two-thirds of the land, the rest one-third remaining with Chand Singh defendant 2. This they claimed on the ground that on remarriage Sada Kaur defendant 1 forfeited her right to the estate of her deceased husband Dalip Singh.

2. The trial Court found that the suit of the plaintiffs was within time, that though the parties are Dhaliwal Jats, by the custom applicable to them. Sada Kaur defendant 1 did not forfeit her first husband's estate on remarriage to his real brother Chand Singh defendant 2, that the plaintiffs failed to prove their title by prescription, that the land is ancestral qua the plaintiffs and Dalip Singh deceased, and that Sada Kaur defendant 1 had become full owner of her share of the land In view of the provisions of the Hindu Succession Act, 1956 The learned trial Judge by his judgment and decree of June 13. 1963, thus did not grant declaration to the plaintiffs as praved for by them, but he made a declaration that they along with Chand Singh defendant 2 are owners and in possession of four-fifths of the land in dispute Decree was ordered to be made according to that, leaving the parties to bear their own costs On an appeal by the plaintiffs from the decree of the trial Court, the learned Additional District Judge of Ferozepur by his judgment and decree of August 7. 1964, reversed the decree of the trial Court and decreed the claim of the plaintiffs as a whole. He pointed out that no other issue was a matter of argument before him except whether Sada Kaur defendant 1 having remarried, within a few months of the death of her first husband, his real brother Chand Singh defendant 2, forfeited the estate she inherited from her first husband or not? He answered the question in favour of the plaintiffs and against the defendants, relying very greatly upon the statement of custom in this behalf as given at page 166 of Currie's Customary Law of Ferozepur District of the Settlement of 1914. Question 47 is --What is the effect of unchastity upon the right of a widow to the estate of her deceased husband? What is the effect of her remarriage? And the answer given is-

'Answer-- At last settlement Mr. Francis wrote:--

'Unchastity or remarriage deprives a Widow of her right to the property.' The Muktsar Code gives a similar answer. The Sirsa Code, however, stated; 'If a sonless widow have succeeded to her husband's estate, and be proved unchaste or leave her husband's house to reside permanently with her parents elsewhere, or marry by nikah or karewa any one except a near agnate of her husband, she loses all right to her husband's estate.' Further on (page 124) it says:-- 'Whenever a widow remarries, even if she marry the brother of her deceased husband, she loses her right to her deceased husband's estate, which reverts at once to his agnates (mostly Sikh, Jats, Kumhar, Khatri, Lohar, Bodla, Chishti, Wattu). If a sonless widow in possession of her husband's estate marries his brother, she is often allowed to remain in possession of her deceased husband's estate for her life time (Bagri Jats, Musalman Jats and Rajputs).

As regards the question of unchastity, there seems to have sprung up a greater laxity. Most tribes now say that unchas-tity does not affect the widow's rights. The following groups however say that unchastity entails forfeiture:-- Among Sikh Jats, Dhaliwals of Moga and Muktsar, Siddhus in Ferozepore, Gils and miscellaneous Jats in Moga and Sandhus and Khosas in Muktsar, and among other tribes -- Bodlas, Nipals and Chishtis in Fazilka. and in Ferozepore Pathans, Arains and Moghals.

Note.-- The truth on this point, I think, is that as long as the widow remains in her deceased husband's house and her unchastity is not an open scandal, no one will object

As Regards the effect of remarriage, all tribes that admit widow remarriage agree that no matter whom the widow marries, she forfeits all right to her deceased husband's estate.

Note.-- Despite the rulings to the contrary that are quoted below, I am convinced that the above answer is a true exposition of the custom. The people when pressed on the point put it as follows:-- the widow on re-marriage ceases to be the widow of her late husband and becomes the wife of the man she has married; she thus forfeits her right, which is really only one of maintenance from the income of the deceased's property. Instances to the contrary will generally be found to be rather of the nature of family arrangements, whereby if the widow has daughters by the previous husband, she may be allowed to retain the whole or a part of the estate till they have been married or where the new husband has already a wife and it is anticipated that the two women may quarrel.

Many of the refusals in succession cases to admit that a karewa marriage has taken place are simply due to the belief that ipso facto the widow's rights are extinguished.'

The learned Author then discusses the decisions of the Chief Court and cites one hundred and two instances in support of his conclusions. Of those there are nine of Dhaliwal Jats, seven from Moga Tehsil and two from Fazilka Tehsil, appearing at pages 173. 174 and 185. Of those nine instances of Dhaliwal Jats in Ferozepur District, eight are in support of the plaintiffs and one against them. All the seven instances from Moga Tehsil are in support of the plaintiffs. Of the two instances from Fazilka Tehsil one is in their favour and one is against them, that is to say, one instance is in favour of Sada Kaur defendant 1. No instance of Dhaliwal Jats is available from Muktsar Tehsll, but the enquiries of the learned Author as digested at page 106 give an answer even with regard to Dhaliwal Jats of Muktsar Tehsil on the questions posed. It will be seen that so far as the question of remarriage is concerned, all tribes said that remarriage, no matter whom the widow remarries, causes forfeiture of all rights to her deceased husband's estate. Overwhelming instances of other Jats in Ferozepur District are also in support of the plaintiffs and against Sada Kaur defendant 1, as enumerated and listed in this book. Now, apparently Riwaj-i-Am, unless rebutted, is a relevant and strong piece of evidence in support of custom. No doubt, the females were not consulted at the time of preparation of the Riwaj-i-am but in spite of this no substantial evidence to the contrary in the form of sufficient number of instances is available Sri this book which rebuts the presumption of correctness of the custom stated therein.

3. The learned Additional District Judge thus proceeded on this evidence and was of the opinion that the Full Bench decision of this Court reported as Charan Singh Harnam Singh v. Gurdial Singh Harnam Singh. AIR 1961 Punj 301, (FB), was not quite in point because it was a case from another district, that is to say, Ambala District.

4. There has been an appeal by the defendants other than the daughters of Sampuran Singh deceased against the appellate judgment and decree of the Additional District Judge of Ferozepore. It came for hearing before Tek Chand J., and the learned Judge was of opinion that Charan Singh's case, AIR 1961 Punj 301 (FB) has stated, following paragraph 32 and Exception 1 to that paragraph of Rattigan's Digest of Customary Law, 1938 Edition, that among Jats remarriage in Karewa form with the brother of the deceased husband does not cause forfeiture of a widow's life estate in the property of her first husband, the proposition therein too broadly and it is not really supported by authority. The learned Judge points out in his order of reference of September 5, 1967, that in the first nine editions of Rattigan's Digest of Customary Law, of which the first six were by the Author himself. Sir William Rattigan, between 1880 and 1921, there was no reference to any such custom in the Digest. It was for the first tune introduced by Mr. K. J. Rustomji when he edited the Digest in 1925 and has continued in it ever since. The learned Judge then points out that when it was introduced in the Digest by Mr. Rustomji there was no authority in support of it but a mistaken view taken in Sant Singh v Rari Bai, 76 Ind Cas 408= AIR 1924 Sind 17, decided on August 1. 1923, by the Judicial Commissioner of Sind, There the learned Judicial Commissioner by mistake stated that among Sikh Jats of Punjab, instead of Sikh Jats of Jullundur, which was the case before him, a widow does not forfeit her life estate in her deceased husband's property by reason of remarriage in Karewa form with her husband's brother whether he be the sole surviving brother or there are other brothers as well of the deceased. The learned Judicial Commissioner was relying upon Basanti v. Partapa, 51 Pun Re 1911, which was a case from Ludhiana District and did not state a general custom applicable to all the districts in the Punjab. This mistake has ever since, according to the learned Judge, been repeated and unjustly attributed to Sir William Rattigan, the original Author of the Digest. The learned Judge felt that he was bound by the decision of the Full Bench in Charan Singh's case. AIR 1961 Punj 301 (FB) and so he has made reference of this case to a larger Bench, which means a Bench of five Judges, because Charan Sineh's case, AIR 1961 Punj 301 (FB) was decided by a Bench of three judges.

5. The question that has been posed by the learned Judge is, whether by universal custom among the Sikh Jats of the Punjab, a widow does not forfeit her life estate in her husband's property by reason of her remarriage in Karewa form with her husband's brother, and, if so, whether the custom admits of exceptions among different tribes of Sikh Jats and in particular among Dhaliwal Jats of Muktsar Tehsil of Ferozepore District In Charan Singh's case, AIR 1961 Punj 301 (FB) it was not stated that there is a universal custom of this type, but from the judgment an argument in support of such a claim may be urged. That was a case which decided the dispute between the parties from Ambala District Now, it is acknowledged that custom in Punjab is not only local but also tribal It may vary from district to district from tehsil to tehsil, and from Pargana to Pargana in the case of the same tribe. It may vary from tribe to tribe and, what is more, it may vary among different sections or castes of the same tribe. If my memory serves me right, except in one case, it has never been accepted that there is any such thing as a general custom prevailing in Punjab. Custom has every time to be alleged and proved as a fact. True, instances of reported cases may offer ready precedents in support of a claim in this respect, but a custom has still to be alleged and proved. In a given case proof may be readily available in the form of reported cases or as is more common in the statement of the custom in the Riwaj-i-Am, to which attaches a presumption of correctness and truth unless otherwise rebutted. So that it would be a point whether the Full Bench In Charan Singh's case, AIR 1961 Punj. 301 (FB) intended to lay down any broad proposition that the statement of custom therein is applicable as a general or a universal custom among Jats in the whole of Punjab. I was a party to that case but mine was a dissenting judgment. What has been brought to light by the learned Judge was never placed before us when that case was heard. Apart from this whatever may be the case of a custom on the aspect of the matter among a particular tribe of Jats in Ambala, in Ferozepore District among the tribe of the parties, according to Currie's Customary Law of Ferozepore District, 1914 Settlement, the custom with them is quite to the contrary- In these circumstances, I thnik it would not be proper to pose a definite question for the larger Full Bench in this case. The reason is that the vast maiority of cases on custom are more disposed of upon the evidence than upon abstract statement of custom as law. As I have already said, in so far as my memory serves, there has only been one statement of general custom applicable to the whole of Punjab in a decision of the Privy Council, but only on one isolated aspect of the customary law and no other. In these circumstances, I think it more appropriate that this second appeal be placed before a Bench of five Judges for final disposal on all aspects that arise in this appeal including the consideration of the Full Bench decision in Charan Singh's case, AIR 1961 Punj 301 (FB). So the case is referred to a Bench of five Judges.